1. This was a suit by the plaintiff against the Secretary of State for India as owner of the Eastern Bengal Railway for damages for late delivery of a. hale of cloth. The case for the plaintiff is that he booked 9 bales of cloth on 21st September 1918 at the Armenian Ghat Station of the Eastern Bengal Railway in Calcutta for despatch to Kushtia. He also booked 6 bales on the 24th September 1918 at the same station for Kushtia. The consignment of 9 bales reached Kushtia on the 24th September and plaintiff took delivery of them on giving a clear receipt, but he subsequently discovered that one of the bales he had taken delivery was a bale booked by one Ramdeo Mahadeo on the same date at the Armenian Ghat Station for one Bhagawan Das at Kushtia. The plaintiff made over that bale wrongly delivered to him to Bhagwan Das and complained to the Goods Clerk at Kushtia that he had not received one of the 9 bales consigned by him on the 21st September. On the 28th October 1918, the plaintiff sent a notice of claim to the Traffic Manager and on the 20th November he got delivery of the missing bale. He further alleged that on account of the negligence of the Railway Authorities and the consequent delay in the delivery of the bale he sustained damages to the extent of Rs. 930, the market for those goods having in the meantime considerably fallen. He then brought the present suit after serving the necessary notice on the Agent of the Eastern Bengal Railway.
2. The defendant contended that the notice was not legally valid, that the delay was not due to the negligence on the part. of the Railway Administration but to the neglect of the plaintiff to help them in tracing the bale when asked to do so, and that the' lost bale was not of the consignment of the 9 bales but it was of the consignment of the 6 bales and that plaintiff's men were negligent in not seeing that the bale was properly labelled by the Booking Clerk at the Armenian Ghat Station at the time of delivery. The defendant stated that in the circumstances the plaintiff was not entitled to any damages and that in any event the claim for damages was excessive.
3. With regard to the legality of the notice it was held by the Munsif that it was legal and valid and this objection was no further pursued. On the merits, the learned Munsif found that at the time when the bales were booked, there was a huge traffic in goods at the Armenian Ghat Station owing to the approach of the Durga Pujas and hence the mistake in omitting to put the Railway mark on the missing bale must be due to pure accident. He further presumed that since the plaintiff's man took delivery at Kushtia of Bhagwan Das bale mistaking it for his own, the omission must have been due to the plaintiff's man not being able to identify the correct bale at the Armenian Ghat Station. He sums up his conclusion thus: 'I must hold that the exchange was purely accidental and plaintiff's man is liable for it.' He further held that the lost 'bale was of the consignment of 9 bales and not of 6 bales as allege the defendant. The last finding of the Munsif was not challenged in appeal and the case in the lower Appellate Court and in this Court also proceeded on the assumption that the lost bale was one of the consignment of 9 bales. In the above view, the learned Munsif dismissed the plaintiff's suit; on appeal by the plaintiff, the learned District Judge affirmed the decree of the Munsif on the finding that 'there was no neglect on the part of the Rail-way Authorities in delivering the missing bale to the plaintiff and the delay was due more to the negligence of the plaintiff in not supplying all information for tracing out the missing bale than to any negligence on the part of the Railway staff of the defendant.' The plaintiff has appealed to this Court and it is urged on his behalf that the learned Judge has erred in law in casting on the plaintiff the onus of proving negligence of the Railway Authorities. We think there is much force in this contention. As there was no special contract between the Railway and the plaintiff, under Section 72 of the Railways Act the Railway occupied the position and suffered from the liabilities of a bailee imposed by Sections 151 and 161, Indian Contract Act. The consequence of this liability is that the loss or non-delivery in proper time of goods entrusted to a bailee is prima facie evidence of negligence and the burden of disproving negligence, therefore, lies on the bailee Surendral Lal v. Secretary of State for India 38 Ind. Cas. 702 : 25 C.L.J. 37, Nanku Ram v. The Indian Midland Railway Co. 22 A. 361 : A.W.N. (1900) 111 : 9 Ind. Dec. (N.S.) 1274 and Hirji Khetsey & Co. v. B.B. & C.I. Ry. 25 Ind. Cas. 241 : 39 B. 191 : 16 Bom. L.R. 467. Section 76 of the Railways Act points in the same direction. The learned Judge has expressed himself on tins question in these words. 'The onus lay heavily upon the plaintiff to prove the negligence on the part of the Railway Authorities, audit was the bounden duty of the plaintiff to show this negligence very, satisfactorily.' After making some observations on the evidence the learned Judge remarks: 'I think the plaintiff has not discharged his on us satisfactorily.' We are of opinion that this view is incorrect in law and that the burden of proving want of negligence is on the defendant.
4. The onus of disproving negligence being on the defendant, the next question for consideration is, whether he has been able to discharge it. The Courts below assume that the delay in the delivery of the bale was due to plaintiff's negligence firstly in not seeing that the bale was properly labelled before despatch by the Goods Clerk and secondly in not responding to the call of the Railway to come and identify an odd bale found lying unclaimed at Armenian Ghat. This neglect on the part of the plaintiff may affect the measure of damages and the principle on which they should be assessed but cannot exonerate the defendant from the legal liability of disproving his negligence. The lower Courts have further assumed that the mistake must have been due to the rush of work at Puja time and to the probability of the plaintiff's man either refusing to identify or making a mistake in identifying the bale at the time of delivery to the Railway Authorities at Armenian Ghat. There is no evidence in support of these surmises and the case ought not to be decided upon suspicions or suppositions in the absence of proof. When a carrier receives goods under a contract of carriage he cannot shake off his statutory liability under Section 151 of the Contract Act by pleading pressure of work or avoidable accident. As to the plaintiff's man making any mistake when he was handing over the bales to the Railway for transmission there is absolutely no evidence on this point. In the above view, we hold that the defendant has failed to discharge the onus that lies on him of proving want of negligence on his part, as the defendant has offered no other explanation for the delay in delivery. On the evidence there is no reason to disbelieve the fact that the plaintiff's man did, as a matter of fact deliver, 9 bale to the Clerk who gave a Railway receipt for the same. The question then arises whether any damages for loss of market were due and if so on what principle are they to be assessed; The plaintiff has claimed damages on the difference between the price he paid for the bale in the market and the price of such cloth on the day when it was delivered to the plaintiff, namely, the 20th November. We think that he is not entitled to calculate damages on this basis. The law as to measure of damages in a case like the present is thus summarised in Addision on Contracts, 11th Edition, page 1072: 'Generally speaking when a carrier fails to deliver articles of merchandise in the ordinary course, and the goods come to a fallen market, the difference between the marketable value of the goods at the time they would have been sold if they had been carried according to the contract, and their marketable value at the earliest period at which they could have been brought to the market after the delivery to the consignee, will be the measure of damages recoverable.' Under Section 73, Explanation, of the Contract Act, in estimating the loss or damage arising from a breach of contract the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. The facts found by the Courts below are that the Railway Authorities were using their best endeavours to trace out the missing bale, that the Goods Supervisor at the Armenian Ghat Station wrote on the 9th October 1918 to the plaintiff to help the defendant to trace out the missing bale to which the plaintiff did not respond, that the plaintiff did not up to the last moment supply the Rail way Authorities with his identifying marks and description to enable the defendant to find out whether the odd bale found at Armenian Ghat at the end of September was the missing bale and that after due enquiry on 14th November 1918 the Railway Authorities learned that that particular bale belonged to the plaintiff and despatched it at once to the plaintiff. On these findings we think that the delay in delivery is partly due to the unjustifiable conduct of the plaintiff, of which he cannot in justice and fairness take advantage. In our judgment the justice of the case requires that the last day of which the market value should be taken into calculation ought to be the day on which the plaintiff would in ordinary course have received the goods if he had complied with the request contained in the letter of the 9th October 1918. The learned Judge believes that the letter reached the plaintiff which must be on the 10th October. Had he attended to it immediately the bale could have been despatched on 11th and delivered to the plaintiff on the 14th October. The plaintiff is, therefore, entitled to damages calculated at the difference, if any, in the market price of the goods on the 24th September 1918 when the other bales, of the same consignment were delivered and that, on the 14th October 1918.
5. The result of the foregoing considerations is that the appeal succeeds in part, the decree of the Court below dismissing the plaintiff's suit is reversed and the plaintiff's suit is decreed to the extent and in the form above indicated. The case will be remitted to the First Court for ascertaining the amount, if any to which the plaintiff may be entitled according to this judgment. Parties will be at liberty to adduce: further evidence to prove market rates on the 24th September 1918 and. the 14th October 1918 but for no other purpose. Costs will abide the result.